' SH. IJAZ NISAR,, J.---These appeals by leave of the Court are directed against the judgment, dated 24-7-1995, passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi, in Criminal Appeal No,125 of 1991 and Murder Reference No,510 of 1991.
2. The facts, in brief, are that Mst. Nasim Akhtar deceased was married to Javaid Khan, respondent No,1 herein. The relations between the couple got strained as Khurshid Begum deceased suspected the character of her husband Javaid Khan. The prosecution story is that on 26-9-1989 at noon time Mehrban Khan complainant, Niaz, Aurangzeb and Mst. Khurshid Begum deceased, the mother of Mst. Nasim Akhtar deceased visited the house of Javaid Khan accused and complained to him about his immoral activities. On hearing this, Bahadur Khan, brother of Javaid Khan, lost temper and told Mst. Nasim Akhtar deceased and his companions to leave that place. Whereupon, Khurshid Begum deceased told Bahadur Khan that she would take her daughter alongwith her and would not send her until Javaid Khan mended his behaviour. The complainant party then moved out. Feeling hurt, Javaid Khan armed with a .12 bore carbine, Bahadur Khan with .12 bore gun and Aslam accused (since acquitted) with a Khanjar raised Lalkara and attacked Mst. Khrushid Begum and Mst. Nasim Akhtar deceased with their respective weapons resulting in their instantaneous deaths. Javaid Khan and Bahadur Khan accused are also alleged to have made a murderous assault on the P.Ws. By ineffectively firing at them.
3. The matter was reported to the police by Mehrban Khan. After completion of the investigation the accused were challaned.
4. The prosecution examined Mehrban Khan P.W.6 and Aurangzeb P.W.7 as ocular witnesses. The learned High Court did not consider them as reliable witnesses being interested and inimical. The relevant discussion is reproduced below:-- ' "We have heard the learned counsel and gone through the evidence. The prosecution in order to establish its case has mainly relied upon the ocular account furnished by Mehrban Khan and Aurangzeb, P.Ws.6 and 7, respectively. Both of them were put to the test of lengthy cross- examination. They are, otherwise, interested and inimical being real brothers of Mst. Khurshid Begum, deceased, and uncle of Mst. Nasim Akhtar, deceased. In cross-examination they could not give any satisfactory answer with regard to the marriage of Mst. Nasim Akhtar with Javed Khan appellant. Being real uncles of Nasim Akhtar, they were not even aware about Haqmehr or other things of the said nature. Certain improvements were made by them with which they were duly confronted but no plausible explanation could be furnished by them. As far as the motive is concerned, it was furnished by both the eye-witnesses. We have noticed that they have not given any particulars of the motive. Nothing was brought on the file to indicate how Javed Khan was of bad character. It was also not disclosed what bad habits he had. In the absence of any information on the point of character of Javed Khan, appellant, we hold that the motive has not been proved at all.
' Bahadur Khan accused set up the plea of alibi which was accepted by the learned High Court in the result he was acquitted. The relevant discussion is reproduced below:-- ' Bahadur Khan appellant took up the plea that he was at a different place on the fateful day. In support of the said plea he produced a defence witness also, who was subjected to cross- examination. The defence witness was neither relation of the appellant nor he was interested to an extent to give false evidence on oath in favour of the appellant. The role ascribed to the appellant is doubtful, therefore, keeping both the versions in juxtaposition we feel that the plea of Bahadar Khan appellant appears to be more plausible than the prosecution versions."
5. Muhammad Aslam co-accused of the respondents/appellants had been acquitted by the learned trial Court as his participation in the occurrence was not found to have been established beyond any reasonable doubt.
6. At the trial, Javaid Khan accused admitted the occurrence and furnished the following explanation:-- ' "I have been falsely involved in this case. In fact on the day of occurrence I visited my house at about noon time against my routine. I was stopped by Mst. Khurshid Begum who said to me that there was a guest in my house. I insisted for going in but she pushed me and when I was protesting with her, one person came out of my residential house who rushed out I made effort to catch hold of him, when Mst. Khurshid Begum tried to stop me. I flared up and I fired with carbine which I had with me and it hit to Mst. Khurshid Begum who had intervened to save said person. Meanwhile Mst.
Naseem Begum also came out of that residential room and when I fired the second shot at that fleeing person, Mst. Naseem Akhtar also came in-between and she was also hit by the second shot.
Aslam and Bahadar Khan my co-accused/brothers were not there and the occurrence had taken place as I lost complete control on myself when I saw that person coming out of my residential room. I acted under grave and sudden provocation and due to my 'Ghairat' and thereafter, I myself appeared before the police soon after the occurrence on the same day. No P.W. Was present there and they have falsely deposed. It is incorrect that my two brothers had participated in the occurrence in any manner. I acted in the defence of my honour."
7. The learned High Court accepted his plea and held him guilty under section 304, Part I, P.P.C. And sentenced him to imprisonment for life. The learned High Court observed that since the motive was not proved there could not be any justification on the part of Javaid Khan to murder his wife who had been married to him just two months prior to the occurrence.
8. Javaid Khan has filed Criminal Appeal No,491 of 1995 to challenge his conviction and sentence, while Mehrban Khan complainant has filed Criminal Appeal No,490 of 1995 to challenge the acquittal of the accused from the charge under section 302/34, P.P.C. And for the restoration of the judgment of the trial Court.
9. Leave to appeal was granted in both the cases to consider whether the principles enunciated by the superior Courts for safe administration of justice in criminal cases were kept in view and to examine the correctness of reasons for the acquittal of Bahadur Khan.
10. We have heard the learned counsel for the parties and perused the evidence. It is contended that the version given by both the eye-witnesses, produced by the prosecution, was not accepted by the learned High Court and the motive part of the story was disbelieved. The recoveries were also not considered to be of any significance. The plea of having acted under grave and sudden provocation does not appear to be an afterthought as it was taken at the earliest before the Investigation Officer, as admitted by Ijaz Hussain Shah, S.-I. P. W.12. Learned counsel appearing on behalf of Javaid Khan appellant states that he was convicted on 14-7-1991 and has already undergone the substantial portion of the sentence of his imprisonment, and in view of the observations of this Court in Mst. Razia Begum v. Jahangir and others (PLD 1982 SC 302) he is entitled to leniency in the matter of sentence and imposition of death penalty on him may not be justified.
' The plea of alibi set up by Bahadur Khan was accepted by the learned High Court for a valid consideration and does not call for any interference in view of the admission by his brother Javaid Khan appellant of having killed both the deceased.
11. In the circumstances discussed above. We do not feel persuaded to interfere with the well- reasoned judgment of the learned High Court, and in consequence dismiss both the appeals.